Is an assistant county counsel in a conflict of interest if his wife is elected or appointed to the county board of freeholders that he serves?

Plain-English summary

An assistant county counsel, appointed by the board of chosen freeholders, asked whether he would be in a conflict of interest or violate the appearance-of-impropriety rules if his wife were elected or appointed to that same board. The Committee surveyed its line of opinions barring lawyers from representing criminal defendants where a close relative is the prosecutor or an assistant prosecutor (Opinions 191, 201, 237, and 288), and reiterated that representation across a blood or marital relationship should be undertaken, if at all, with extreme caution given the Disciplinary Rules on avoiding the appearance of impropriety.

It then distinguished those cases. The inquiry did not involve the husband representing an interest adverse to his wife. As a freeholder, the wife would act on behalf of the whole county; as assistant county counsel, the husband would do the same. The Committee concluded there was no conflict per se, so the inquirer would not be placed in a conflict if his wife joined the board, while noting that a conflict might arise on a particular question.

The Committee declined to address a second question, whether his wife's membership on the board would affect his reappointment as assistant county counsel, holding that whether and how the husband of a freeholder may be appointed to a county position is a matter of law rather than legal ethics.

Currency note

This opinion was issued in 1975, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. The conflict and appearance-of-impropriety concerns then addressed under the Disciplinary Rules are now treated under RPC 1.7 and, for government lawyers, RPC 1.11. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does an assistant county counsel have a conflict if his spouse joins the county board he serves?

A: Not per se, under this opinion. The Committee concluded both spouses would act on behalf of the whole county, so there was no inherent conflict, though one could arise on a specific question.

Q: How is this different from a lawyer whose spouse is a prosecutor?

A: The opinion distinguished its prosecutor-relative cases (Opinions 237 and 288) because those involved representing an interest adverse to the relative's office. Here the husband and wife would both serve the county, not opposing sides.

Q: Did the Committee decide whether he could be reappointed once his wife was on the board?

A: No. It declined to opine, holding that whether the husband of a freeholder may be appointed to a county position is a question of law, not legal ethics.

Background and rules framework

The opinion applied the appearance-of-impropriety principle then expressed in the Disciplinary Rules, read against the Committee's relative-conflict line of opinions. In current New Jersey terms, conflicts arising from a lawyer's personal relationships and from public service are governed by RPC 1.7 (concurrent conflicts) and RPC 1.11 (government officers and employees).

Citations and references

Rules of Professional Conduct:

• Disciplinary Rules on avoidance of the appearance of impropriety, as in effect 1975; conflict analysis now under MR 1.7 / NJ RPC 1.7 and MR 1.11 / NJ RPC 1.11

Other opinions cited:

• NJ ACPE Opinion 191, 94 N.J.L.J. 33 (1971)
• NJ ACPE Opinion 201, 94 N.J.L.J. 225 (1971)
• NJ ACPE Opinion 237, 95 N.J.L.J. 410 (1972)
• NJ ACPE Opinion 288, 97 N.J.L.J. 766 (1974)

See also

• NJ ACPE Op. 355: A Freeholder's Partner as Assistant County Counsel
• NJ ACPE Op. 328: Husband Municipal Attorney, Wife on the School Board
• NJ ACPE Op. 346: School Board Attorney and Labor Negotiator With a Teacher Wife
• NJ ACPE Op. 322: A Board of Adjustment Member Suing His Own Municipality

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp318-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

98 N.J.L.J. 823, September 25, 1975

OPINION 318

Conflict of Interest Freeholder's Husband Assistant County Counsel

The inquirer is an assistant county counsel, appointed by the board of chosen freeholders, and his wife has been selected as a candidate for that board in the coming election. He seeks the advice of this Committee as to whether he would be placed in conflict of interest or violate the Disciplinary Rules regarding appearance of impropriety if his wife were elected a freeholder of the county where he serves as assistant county counsel or if his wife were appointed by the board of chosen freeholders to fill an unexpired term on the board.

In Opinion 191, 94 N.J.L.J. 33 (1971), we held that it would be improper for a firm to represent defendants in criminal actions in a county where a former partner of the firm, who was also the father of one remaining partner and the brother of another, was county prosecutor. Similarly, Opinion 201, 94 N.J.L.J. 225 (1971), held that an attorney may not represent criminal defendants in the county where his son and former partner is now a full-time assistant prosecutor. A like result was reached in Opinion 237, 95 N.J.L.J. 410 (1972), where we held that it would be improper for an attorney to represent criminal defendants in a county where his wife was an assistant prosecutor, even though he had never practiced law with her or shared office space with her. Similarly, Opinion 288, 97 N.J.L.J. 766 (1974), prohibits an attorney from representing criminal defendants in the State while her husband is employed as a deputy attorney general assigned to the Appellate Section of the Division of Criminal Justice. Although we have never gone so far as to hold that under any and all circumstances lawyers with blood or marital relationship may not represent conflicting interests, such representation should be undertaken, if at all, with extreme caution, in view of the mandate of the Disciplinary Rules relating to avoidance of the appearance of impropriety. Opinion 237, supra.

The facts presented by this inquiry do not, however, involve a situation where the attorney would represent an interest which conflicts with that of his wife, either in her official capacity or as an individual. Both the wife, as a member of the board of chosen freeholders, and her husband, as assistant county counsel, would be acting on behalf of the whole county. While a situation might arise where there would be a conflict of interest on a particular question, there is no conflict per se, and the inquirer would not be placed in a conflict of interest should his wife be elected or appointed to the board of chosen freeholders.

The inquirer also refers to possible problems which might occur, should his wife be elected to the board, when he is considered for reappointment as assistant county counsel. Since his wife is apparently not an attorney, and since the question of whether, and under what circumstances, the husband of a member of the board of chosen freeholders may be appointed to a county position by the board is a matter of law, rather than one of legal ethics, we express no opinion on that aspect of the inquiry.